Act 1: Manjit Singh Dhillon Writes A Letter

Hand-delivered to Attorney General Mohtar Abdullah, 9.30 am, 12 October 1988

At the very outset let me apologize for writing this letter in English. I would under normal circumstances have arranged for my staff to translate it into Bahasa but there are matters that I am about to set out that for the moment I feel are best left on a p & c basis. Hence the need to keep the letter away from my staff. I have even taken the precaution of hand-delivering this letter myself.

You will recollect that I wrote to you on 1 October 1998 on the above matter citing the recent prosecution of Samsuri Welch Abdullah under the Arms Act 1960 as a comparative basis for you to amend the charge against Nallakaruppan from the Internal Security Act 1960 to one under the Arms Act 1960. I had copied that letter to Dato Gani Patail.

I had expected a response from your office but instead, as in the case of my first letter dated 17 August 1998, I had a call from Dato Gani Patail on 2 October 1998 asking to see me on a very urgent basis. Both Mr. Balwant Singh Sidhu and I saw him at 3.20 p.m. on 2 October 1998. The date & time of this visit is recorded in the police log book maintained outside Dato Gani’s office on the 17th Floor of Bangunan Bank Rakyat.

I had gone to this meeting with the expectation that, on the basis of my 1st October letter, there would be some discussion about possible sections under the Arms Act 1960 with a view to an amendment of Nallakaruppan’s present ISA charge. To my absolute horror and disappointment Dato Gani Patail used the meeting and the death sentence under section 57 of the ISA as a bargaining tool to gather evidence against Dato Seri Anwar Ibrahim.

He had with him the letter I had written to you and copied to him. He was waving the letter about and kept on saying repeatedly, ‘I am not impressed’ and suggesting that he would not be impressed with any plea to a charge under the Arms Act but instead wanted more. This ‘more’, and it came across very loud and clear because Dato Gani laid it out in very clear and definite terms, was:

That Nallakaruppan was now facing the death sentence.

That there were other charges also under the ISA that he could prefer against Nallakaruppan but that if they (A.G.’s Chambers) hanged him once under the present charge what need would there be to charge him for anything else.

That in exchange for a reduction of the present charge to one under the Arms Act he wanted Nallakaruppan to co-operate with them and to give information against Anwar lbrahim, specifically on matters concerning several married women. Dato Gani kept changing the number of women and finally settled on five, three married and two unmarried.

That he would expect Nallakaruppan to testify against Anwar in respect of these women.
I was shocked that Dato Gani even had the gall to make such a suggestion to me. He obviously does not know me. I do not approve of such extraction of evidence against ANYONE, not even, or should I say least of all, a beggar picked up off the streets. A man’s life, or for that matter even his freedom, is not a tool for prosecution agencies to use as a bargaining chip. No jurisprudential system will condone such an act.

It is blackmail and extortion of the highest culpability and my greatest disappointment is that a once independent agency that I worked with some 25 years ago and of which I have such satisfying memories has descended to such levels in the creation and collection of evidence. To use the death threat as a means to the extortion of evidence that is otherwise not there (why else make such a demand?) It is unforgivable and surely must in itself be a crime, leave alone a sin, of the greatest magnitude. Whether his means justify the end that he seeks are matters that Dato Gani will have to wrestle with within his own conscience.

I have agonized over these machinations of Dato Gani’s for the last 10 days. I have known you for close to 26 years. I cannot imagine you condoning such an act. And so this third and final letter on this matter and my decision to let you know what transpired on the afternoon of 2 October 1998. How far into your Chambers the corruption has spread I cannot say but that you will have to stop it goes without saying.

Nallakaruppan does not deserve the charge under the ISA bearing in mind what I have set out above and what is tabulated below. The facts relating to the 125 bullets have been set out in my earlier two letters. In my second letter I mentioned the Samsuri Welch Abdullah charges. I have since researched into the Arms Act prosecutions by your Department over the last few years but because of the constraint of time have only been able to pick till 1993, a period well within your tenure as Attorney General. I haye chronologically listed out below all the cases reported in the local papers that I have been able to locate. All that is important at this juncture is to note that even in matters of far greater magnitude you have chosen the Arms Act as the vehicle for your prosecutions.

(Annexures noted)

Samsuri Welch Abdullah had exceptionally large quantities of ammunition that had no relevance to his pistols. Vincent Teo’s prosecutions listed above (‘E’ & ‘H’) assume even greater significance. He was involved in gun smuggling and the illegal sale and disposal of about 240 guns together with Datuk Alfred Chin (who was related to a senior police officer), a fact highlighted by the Director of the CID, Malaysia in a press release dated 27 May 1996 (please see The Star clipping dated 28 May 1996 annexed to this letter as ‘K’). That is by any stretch of the imagination a colossal amount of firearms, enough to equip a small army. If such a matter only warranted the Arms Act, then surely 125 bullets acquired under a licence where the licerice has expired cannot warrant the ISA.

This then makes the last case (‘J’) listed above very relevant to your deliberations. This was an instance where the gun permit had expired and had not been renewed. The charge that was framed against Datuk Johari under section 8 (a) was for failing to renew his permit between July 1983 and 27 March 1984 when the gun was found in the Regent Hotel toilet.

In the circumstances I will be grateful if you could give this matter your urgent and personal attention. On the available facts a charge under Arms Act 1960, as in Datuk Johari’s case above, will be the most appropriate and no extraneous matters should be taken into consideration in the framing of the charge. In the event that your direction is favourabIe, the matter could be called up at short notice, perhaps even before Deepavail, with a view to a prompt and early resolution. This will free the Court of the earlier trial dates fixed and save considerable time and expense all round.

Act 2: Manjeet Singh Dhillon makes a Statutory Declaration - 9 November 1998

I, Manjeet Singh Dhillon (NRIC No: 0248545), c/o Room 308, 3rd Floor, Bangunan Yayasan Selangor, Jalan Bukit Bintang, 55100 Kuala Lumpur, of full age and a Malaysian citizen, do hereby declare and say as follows:

I am an Advocate & Solicitor of the High Court of Malaya with an address for practice at Room 308, Bangunan Yayasan Selangor, Jalan Bukit Bintang, 55100 Kuala Lumpur and the facts deposed to in this Statutory

I am retained as counsel for Dato Nallakaruppan a/l Solaimalai in Kuala Lumpur High Court Criminal Trial No: 45-40-1998 which is scheduled for hearing from 9 November 1998 onwards.

I wrote the letter annexed hereto as MSD-1, the contents of which are self-explanatory, and delivered it personally to the Hon. Attorney-General Tan Sri Mohtar Abdullah on 12 October 1998 at about 9.30 a.m.

Pursuant to the letter being delivered and as a result of an invitation from him to do so I met with the Hon’ble A.G. at about 11.00 a.m. on 13 October 1998. This invitation to meet him, alone, was conveyed through his secretary.

At the meeting the Hon’ble A.G. never questioned or disputed my allegations against Dato Gani Patall. Instead the conversation covered, among other things, the work that he, the Hon’ble A.G., was doing to improve the set-up and efficiency of his Department. Only at the tailend of our meeting did the Hon’ble A.G. allude to my letter and say that the letter was not very clear as to how my client would plead to an amended charge under the Arms Act. My response to that was that the client would enter a plea of guilty to an amended charge under the Arms Act. He asked for a letter confirming this and said that either he or Azahar would revert to me after that.

On 14 October 1998 I wrote a short letter to the Hon’ble A.G. confirming my statement that the client would plead guilty. A copy of this letter is annexed hereto as MSD-2.

I telephoned and spoke to the Azahar inculcated by the Hon’ble A.G. This was on 16 October 1998. The ‘Azahar’ in question is Encik Azahar bin Mohamed, Ketua Bahagian Pendakwaan. Encik Azahar confirmed receipt of my letter dated 14 October 1998 and he knew about my meeting the Hon’ble A.G. on 13 October 1998. He went on, in the same conversation, to state that there would have to ‘be something else (i.e. more than just a plea of guilt to an amended charge)’ and that he would revert when he had instructions. This ‘something else’ asked for by Encik Azahar was obviously what Dato Gani had asked for, on 2 October 1998, and confirmed to me a common approach to extracting evidence from Nallakaruppan a/l Solaimalai by using the I.S.A. ‘death threat’ as their bargaining chip.

I had conveyed Dato Gani’s demands to my client on the afternoon of 13 October 1998. There was little that Nalla-karuppan could have done to satisfy Dato Gani or Azahar since he had nothing to give them that would have matched their demands, short of lying.

I did not hear from the Hon’ble A.G. or Encik Azahar and so on or about the 21 October 1998 I telephoned and spoke to the Hon’ble A.G. He said that he had made no decision and asked for a further week.
There was no further response and so on 28th October 1998 I sent the Hon’ble A.G. a reminder. I received a reply dated 29 October 1998 signed by Encik Azahar bin Mohamed rejecting the request for an amendment of the charge. This rejection letter is annexed hereto as ‘MSD-3’ and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act, 1960.

Act 3: Zainur Zakaria is cited for contempt

(From the Notes of Evidence)

Court to En. Zainur Zakaria: This notice of motion has been filed by you and you have to assume full responsibility for it.

Court: Please read the Statutory Declaration of Mr. Manjeet Singh and his letter to the AG which form the basis of your application.

En. Zainur: Counsel who is arguing this application is Y.M. Raja Aziz Addruse and Tuan Hj. Sulaiman Abdullah.

Raja Aziz: The course of action Your Lordship is taking is most unusual. We have an application based on a Statutory Declaration which is admissible. It is not right to deal with a solicitor at this stage for filing it unless your Lordship propose to bring charges which we can defend.

Court: I intend to do that.

(Encik Zainur Zakaria reads the Statutory Declaration and the letter from Mr. Manjeet Singh to AG.)

Court: The basis of your application are these two documents.

En Zainur: Yes.

Court: I believe you are aware of the law relating to accomplice evidence and the right of the Public Prosecutor to reduce a charge or not to charge a person if he cooperates and provides information to the police.

En. Zainur: I am not obliged to answer that question.

(Court reads law from various textbooks.)

Court to En. Zainur: Please read paras 13, 16 and 18 of the affidavit (En. Zainur reads).

Court: Are these allegations made in the affidavit supported by the documents that you are relying on?

En. Zainur: Yes. By reading the Statutory Declaration and the letter, in particular para 2 of letter. In this paragraph Mr. Manjeet says para 3 - the whole of it. En. Zainur reads para 3. En. Zainur reads para 4.

Court: Do you agree that para 4 is Mr. Manjeet’s conclusion and has nothing to do with his meeting with Gani Patail?

En. Zainur: From what I understand from para 4 it was the conclusion based on the meeting between Mr. Manjeet and Gani Patail. I agree that para 4 is Mr. Manjeet’s own conclusion.

Court: Now I take you to para 3. Which part of para 3 suggests that there was a request to fabricate evidence?

En. Zainur: Para 3 must be read with para 4. In para 3 it is point 3 (he reads: That in exchange for reduction of the present charge to one under the Arms Act he wanted Nallakaruppan to cooperate with them and to give information against Anwar Ibrahim, specifically on matters concerning several married women, Dato Gani kept changing the number of women and finally settled on five, three married and two unmarried. Point No. (4): That he would expect Nallakaruppan to testify against Anwar in respect of these women.

Court: Does item 3 in para 3 suggest that there was a request to fabricate evidence?

En. Zainur: It must be read with para 4,

Court: Do you realize that the detailed questioning that I am embarking is to find out whether you filed an application without much thought in which event this court may be merciful with you?

Court: Where does para 3 suggest that a request was made to fabricate evidence?

En. Zainur: Para 3 and para 4 should be read together and when Mr. Manjeet referred to the ‘creation’ of evidence he was referring to use of death threat. The use of the words ‘creation and collection of evidence which is otherwise not there’ suggests that Nalla was requested to give evidence against Dato’ Seri Anwar.

Court: You say ‘to give evidence’ - nothing wrong with that. Where is the evidence to show that there was a request to fabricate evidence?

Raja Aziz: This is unusual procedure.

Tan Sri AG: I agree it is unusual. When I was asked to sit I sat.

En. Zainur: In para 4 the use of the words to create evidence means Nalla is asked to create evidence.

Court: I refer you to para 8 of Mr. Manjeet’s Statutory Declaration.

En. Zainur: This shows that Datuk Nalla could not give the evidence and there was no such evidence and would mean he is lying.

Court: Are you satisfied that the two documents in question suggest that there was a request to fabricate evidence?

En. Zainur: Yes

Court: This application with its affidavit in support is an interference with the course of justice as it has no basis. It therefore amounts to a pre-emptive step to undermine the integrity of a trial in progress. The object is to project an impression that the prosecution is anchored on fabricated evidence. This is a serious contempt and I have to act on it with all urgency to preserve the integrity of this trial. As I said in the early stage of this trial I will not hesitate to flex every inch of my judicial muscle to ensure that this trial proceeds smoothly. It is my duty to guarantee that persons who are following this trial are not hoodwinked in any way. With the application of this nature to muddy the smooth flow of justice, I would not be surprised if a similar application is made to have me disqualified from hearing this case. In the light of the baseless application filed by you which is totally unsupported by the documents exhibited by you I propose to cite you for contempt for having attempted to undermine the integrity of this trial. Before I do so this court will show mercy towards you by dropping all further proceedings if you tender an unconditional apology to this court, to the AG, to Dato Gani Patall and to En. Azahar for filing an application which is absolutely baseless and which is an abuse of the process of court. (Court to adjourn for half an hour to enable En. Zainur to think about it).

On resumption:

Court: Guilty. Do you wish to address on sentence?

En. Zainur: It was not the intention to commit contempt. When the defence team studied the application before filing it was based on the documents exhibited. Our instructions were based on the documents. In the interest of justice it was felt this matter must be brought to attention of Court.

Court: You do not wish to tender an apology in the terms I described earlier?

En. Zainur: I regret I am unable to do that.

Convicted.

Sentence – three months’ imprisonment.

Act 4: Federal Court Speaks

Excerpts From Judgment of Justice Abdul Malek Ahmad

The relevant question, as learned counsel put it, would be whether the appellant’s client [Anwar Ibrahim], by whom the application was made, had the right to complain to the High Court with regard to the alleged conduct of the two prosecutors and whether he had grounds for making the application. If he had the right to make a complaint and if he had acted properly in making the application, then the appellant’s act of filing the application on his client’s behalf could not have constituted an interference with the administration of justice and, consequently, contempt of court.

What merits consideration first is whether there was evidence to support the application to disqualify the two prosecutors. One only need to read MSD’s letter and statutory declaration to appreciate the fact that this cannot be a baseless allegation. In consequence, there is really no basis to find that the appellant had acted in bad faith in filing the application on behalf of his client.
Learned counsel [Haji Sulaiman Abdullah] further argued, and this was very important, that the overriding factor in the four charges against the appellant’s client was sexual misconduct. The defence, in essence, was that there was no truth in the trumped up charges and that all the evidence was fabricated. Being aware of MSD’s letter and statutory declaration, which naturally confirmed the suspicions of the appellant’s client, it was natural for the client to be overly anxious about the proceedings against him. In doing what he did, can he be said to be interfering with the administration of justice?

Much has been said about accomplice evidence but whether or not Dato Nallakaruppan was an accomplice or otherwise is clearly of no relevance. The main issue is the conduct of two of the prosecutors in the prosecution team striking a bargain to get further evidence, fabricated at that, against the appellant’s client in exchange for a reduction for the death penalty charge then levelled at Dato Nallakaruppan.

Apart from the fact that the application was filed on Saturday and the hearing took place on the following Monday, the notes of evidence, the reproduction of which earlier in this judgment was for the sole purpose of illustrating the point, clearly showed that the trial judge, despite the intervening day being a Sunday, was quite well prepared for the event. The manner he conducted the proceedings, in particular the interrogation of the appellant and the speedy finding of guilt without even allowing the appellant to call any witness, gave the picture that he was behaving as though he was acting as counsel for the two prosecutors in the motion.

Excerpts From Judgment of Justice Steve Shim

Given this scenario, it was hardly surprising that MSD should have concluded or perceived that there was an attempt to extract or extort evidence from Nalla on the part of AGP. If there was, wherefore can it be said that there had been a full and free disclosure by Nalla? It would have been a clear contravention of the second pre-requisite I spoke of a moment ago that the prosecution has to act properly and fairly in seeking the cooperation and assistance of an accomplice. Furthermore, there is nothing to indicate or suggest that AGP had made any effort to determine whether or not Nalla was in a position to give such evidence. If he (Nalla) was unable to give the sort of information requested to the knowledge of AGP, then quite clearly, this would be asking Nalla to give evidence which never existed - in short, to fabricate evidence. In my view, evidence should have been led to ascertain these matters by calling MSD and/or AGP. They should have been given the opportunity to explain.

In the circumstances, the view taken by the learned High Court Judge that the request for information by AGP in this case was an exercise of lawful powers with no undertones of any impropriety is clearly misconceived. It follows therefore that the Court of Appeal’s endorsement of that view is equally tainted with the same misconception.

I have earlier drawn attention to that part of the judgment of the learned High Court Judge when he said that since the appellant was aware of the contents of Exhibit IDI4B in the possession of the prosecution at the material time, he should have been on his guard when he read the letter dated 12th October 1998 written by MSD to the Attorney-General and which should have prompted him as a senior member of the Bar and an officer of the Court to alert MSD as to the folly of his conclusions. With respect, such a stand could not have been tenable as it would conceivably be premised on the wrong assumption that the appellant had accepted or should have accepted the truth of the contents in Exhibit ID14B. It is clear that the accused DSAI had, in the course of his trial, denied and/or disputed the allegation that he had had extramarital affairs with other women. As I said before, whether that denial and/or dispute had any merit or not was beside the point. What was significant was the fact that DSAI had taken such a stand. The learned High Court Judge had apparently failed to consider this material particular and, as a result, had arrived at a conclusion which, in my view, was quite unsustainable in all the circumstances.

For the reasons stated, I must, with respect, disagree with the High Court in holding (as did the Court of Appeal) that the appellant had acted recklessly, negligently and in bad faith in filing the disqualification application. In my view, he was prirna facie justified in filing the said application. In the premises, there could not therefore have been any abuse of the process of the court having the effect of undermining the authority and/or integrity of the trial in progress. It must consequently follow, as night follows day, that the charge of contempt against the Appellant has not been proved beyond reasonable doubt.

Excerpts From Judgment of Justice Haidar Mohd. Noor

In short, if the filing of the application was prima facie justified there could be no question of the appellant being liable for contempt of court for acting on the instructions of DSAI. In other words, the appellant could not be said to be reckless and negligent and acted in bad faith in filing the application as held by the learned High Court Judge and upheld by the Court of Appeal.

Hence, the question of undermining the authority and/or integrity of the trial in progress did not arise. I would add that the issue of trying to derail the trial also did not arise as evidence showed that the appellant was merely asking for a short adjournment to prepare his defence, that is, just a few days. Surely justice should be accorded to him to do so as his liberty was as stake and such an application should not be viewed negatively by the court as if to prevent or delay the course of justice.